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Technical  and  Bibliographic  Notas/Notes  tachniquaa  at  bibliographiquas 


The  Inatituta  haa  attamptad  to  obtain  tha  baat 
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copy  which  may  ba  bibliographically  uniqua. 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction.  or  which  may  aignif  icantly  changa 
tha  uaual  mathod  of  filming,  are  checked  below. 


0 


D 


D 
D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      j   Covers  damaged/ 


Couverture  endommagte 

Covers  restored  and/or  laminated/ 
Couverture  reatauria  et/ou  pellicuMe 

Cover  title  miaaing/ 

Le  titre  de  couverture  manque 


I      I    Coloured  mapa/ 


Cartes  gtographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encra  da  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I   Coloured  platea  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
ReliA  avec  d'autres  documenta 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serr6e  peut  causer  de  I'ombre  ou  de  la 
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Blank  leaves  added  during  restoration  may 
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II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restauration  apparaissant  dans  la  texte, 
mais,  lorsque  cela  itait  possible,  ces  pagea  n'ont 
pas  M  filmtes. 

Additional  comments:/ 
Commentaires  supplAmantairas; 


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modification  dans  la  mtthoda  normale  de  filmage 
sont  indiqute  ci-dessous. 


r~|   Coloured  pages/ 


D 


Pagea  da  couleur 

Pages  damaged/ 
Pages  endommagias 


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Pages  restaurAas  et/ou  pellicul6es 

0    Pages  discoloured,  stained  or  foxed/ 
Pages  dicolories,  tachettes  ou  piqui 


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Includes  supplementary  matarii 
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Only  edition  available/ 
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□   Pages  detached/ 
Pages 

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I      I  Quality  of  print  varies/ 

|~~|  Includes  supplementary  material/ 

I — I  Only  edition  available/ 


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This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  fiimi  au  taux  da  reduction  indiquA  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

y 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

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L'exemplaire  filmA  fut  reproduit  grAce  A  la 
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plus  grand  soin,  compte  tenu  de  la  condition  et 
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conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprimte  sont  filmte  en  commenpant 
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derniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  seion  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmte  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  derniire  pajie  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^-  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "RND"), 
whichever  applies. 


Un  des  symboles  suivants  apparattra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  »►  signifie  "A  SUIVRE".  le 
symbole  ▼  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
filmfo  d  des  taux  de  r6ducdon  diff6rents. 
Lorsque  le  rJocument  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6.  il  est  film6  d  partir 
de  Tangle  supdrieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  la  mithode. 


1  2  3 


1 

2 

3 

4 

5 

6 

fM-TERErrORrAB  INeiDBNTS 


09 


O  L  O  N I  AX  L  EG  I S  L  A T I  ON. 


1", 


vt 


B.     G.    GRAY, 

corasBixoB  iT  Law,  mass. 


BOSTON: 

PBINTBi)   BY  BAVID   OLAPP. 

1868. 


fc«*>-.« 


# 


•f>.-' 


i      m 


■pfPpwp^^pw 


EXTRA-TERRITORIAL  INCIDENTS 


oy 


*'*. 


COLONIAL   LEGISLATION. 


BT 


B.     G.    GBAY, 

COVKSELLOR  AT  LAX.',  MASS. 


BOSTON: 
PRINTED    BY   DAVID    CLAPP. 
1863. 


His 


TO 


His  Grace  the  DUKE  OF  NEWCASTLE,  K.  G.,  &c.  &c. 

SECUETAEY   OF  STATE   FOR  THE   COLONIES, 

AND  OTHERS  INTERESTED  IN  THE  SUBJECT, 

ARE  RESPECTFULLY  DEDICATED 


&C. 


BY  THE  AUTHOR. 


A 

Brii 

sioE 
Sco 
give 
the 
are 
T 
tra"v 
tion 
ob8( 
csts 
flirt 
sign 


B 


PREFACE. 


A  general  acquaintance  with  Canada  and  the  neighboring 
British  North  American  Colonies,  and  several  years  profes- 
sional experience  in  the  Provinces  of  New  Brunswick,  Nova 
Scotia,  and  latterly  in  the  State  of  Massachusetts,  have 
given  the  writer  opportunities  of  becoming  conversant  with 
the  social  and  commercial  relations  of  these  localities  which 
are  closely  intertwined. 

There  is  every  indication  that,  with  greater  facilities  for 
travel  and  transportation  now  in  progress,  these  mutual  rela- 
tions will  assume  still  greater  importance  ;  and  the  following 
observations  are  offered  under  a  conviction  that  the  inter- 
ests involved  are  of  sufRcieut  moment  to  render  unnecessary 
further  explanation  or  apology  for  their  appearing  over  the 
signature  of  a  private  individual. 


BosTO.;,  Massachusetts, 
January,  1863. 


lid 


(  vi  ) 


EXTRACT   FROM 


THE  ACTS  OF  NEW  BRUNSWICK  (18G0), 
23  Vic,  c.  26. 

Sec.  1.  "  t'or  facilitalin^  the  acknowledgment  of  DooJs, 
Conveyances  and  other  InHtruments  affecting  real  or  personal 
properly  in  (Ids  Province,  and  also  the  aduiinistering'  of  Oatlis 
or  taking-  Aflidavits  for  the  purpose  of  holding  persons  to 
bail  in  (his  Frocincj,  or  having  relation  to  any  judicial  pro- 
ceeding in  any  Court  of  Justice  therein  ; 

"Be  it  enacted  l,y  the  Lieutenant  Governor,  Legislative 
Council,  and  Assembly,  as  follows  : — 

1.  "  That  it  shall  and  maybe  lawful  for  His  Excellency 
the  Lieutenant  Governor  in  Council,  to  appoint  one  or  more 
Commissioners  resident  in  the  United  Kingdom,  or  in  the 
Islands  of  Jersey  or  Guernsey,  Alderney,  Sark,  or  Man,  and 
the  United  States  of  America,  to  administer  Oaths  and  take 
Aflidavits  to  be  read  and  used  in  the  several  Courts  of  Justice 
in  this  Province,  and  also  to  receive  acknowledgments  and 
proof  of  the  Execution  of  Deeds,  Conveyances  and  other 
Instruments  ajj'ccting  real  or  personal  property  in  tliis  Pro- 
vince ;  and  fur  the  purposes  of  this  Act,  such  Commissioners 
shall  be  severally  invested  with  all  the  jiowors  and  authori- 
ties by  the  112th  Chapter  of  the  Hevised  Statutes*  given  to 
any  Judge  of  the  Court  of  Queen's  Bench  or  Common  Pleas, 
or  Baron  of  the  Exchequer,  or  Master  in  Chancery  in  Eng- 
land or  Ireland,  or  any  Judge  or  Lord  of  Session  in  Scotland; 
or  Mayor  or  other  Chief  Magistrate  of  a  City,  Burough  or 
Town  Corporate,  in  any  part  of  the  United  Kingdom, 
respecting'  acknowledgments  and  proofs  of  Conveyances  or 
other  Instruments,  and  also  with  f»U  the  powers  and  authori- 


\ 


^ 


*  Ecvi.'jcd  Statutes  of  New  Bmuswick,  c.  112,  sec.  6. 


(  vii  ) 

tics  by  the  Seventh  Section  of  an  Act  matlo  and  passed  in 
the  nineteenth  year  of  the  Reign  of  Her  present  Majesty, 
intitnled  '  An  Act  in  furtiier  ainen<hnent  of  the  Law,'*  given 
to  a  Judge  of  any  Court  of  Justice  in  tlie  United  Kingdom, 
or  in  any  foreign  State,  or  in  any  British  Colony." 


EXTRACT    FROM 

THE  ACTS  OF  NOVA  SCOTIA  (1861), 
24  Vic,  c.  i. 

Sec.  1.  "Be  it  enacted  by  the  Governor,  Council,  and 
Assembly,  as  follows  : — 

1.  *'  The  Governor  in  Council  may  appoint  Commissioners 
residing  in  the  United  Kingdom,  or  in  any  British  Colony,  or 
in  a  foreign  country,  and  sucii  Commissioners  shall  have 
power  to  take  acknowledgments  of  release  of  dower  by  mar- 
ried women,  to  take  attestations  under  oath  of  the  execution 
of  deeds  and  writings  intended  for  recjidrxj  in  this  Province, 
to  take  attestations  to  affidavits  relating  to  the  transfer  and 
registry  of  vessels  belonging  to  thifi  Promnce,  and  relating  to 
proceedings  in  the  Supreme  Court  or  in  any  other  Court 
within  this  Province.' ' 


EXTRACT   FROM 

LETTER  OF    THE  LAW  OFFICERS  TO  THE  DUKE  OP 

NEWCASTLE. 

"  30th  October,  1860. 

"  We  are  of  opinion  that  the  Act  in  question  (23  Vic,  c. 
26)  is  framed  in  excess  of  the  authority  possessed  by  the 
Legislature  of  New  Brunswick. 


*  Act  of  New  Brunswick,  1856  (19  Vic),  cli.  41,  sec.  7. 


li 


(  viii  ) 


"  They  might  well  have  passed  an  Act  declaring  that  Affi- 
davits taken,  and  deeds  acknowledged  before  certain  persons 
in  Great  Britain  and  Ireland,  or  the  rest  of  the  United  King- 
dom, should  bo  received  in  the  Courts  of  Justice  in  the 
Colony-;  and  be  deemed  valid  as  if  they  had  been  duly  made 
within  the  precincts  of  the  Colony  ;  but  they  had  no  power 
to  enact  that-  the  Governor  of  New  Brunswick  should  appoint 
Commissioners  within  the  United  Kingdom,  wlio  should  be 
clothed  with  all  the  powers  and  authorities  of  the  Judges 
of  the  Courts  of  Westminster  Hall,  the  Lords  of  Session  in 
Scotland,  and  Masters  in  Chancery  in  England  and  Ireland, 
and  finally  with  all  the  powers  and  authorities  given  to  a 
Judge  of  any  Court  of  Justice  in  the  United  Kingdom,  o:  in 
any  foreign  State,  or  in  any  British  Colony,  by  the  7th  sec- 
tion of  the  19th  Victoria,  intituled,  'An  Act  in  further  amcnd- 
ment  of  the  Law.' 

"  A  Statute  so  universal,  taking  effect  pnr  orhem  ferrarum, 
would  hardly  be  within  the  power  of  the  Imperial  Parliament, 
but  certainly  very  widely  transcends  the  limits  of  that  au- 
thority whicli  belong!'  .     the  Legislature  of  New  Brunswick. 

"  We  think  it  wouid  be  desiral)lc  to  bring  a  Bill  into  Par- 
liament next  Session  for  the  purpose  of  enacting  that  all  per- 
sons duly  authorized  to  take  Affidavits  in  the  United  King- 
dom, or  the  acknowledgments  of  Deeds  by  married  women, 
should  be  empowered  to  take  Affidavits  and  acknowledg- 
ments to  be  used  in  the  Courts  of  Justice  in  any  Colony, 
provided  such  Affidavits  and  Deeds  be  made  admissible  in 
the  Courts  of  Justice  of  such  Colony  by  any  Act  of  the 
Colonial  Legislature  or  other  authority. 

RICHARD  BETIIELL, 
WM.  ATOERTON." 


ing 


that  Affi- 
n  persons 
ted  King- 
;o  in  the 
luly  made 
no  power 
d  appoint 
should  be 
e  Judges 
session  in 
\  Ireland, 
"iven  to  a 
om,  Oi.'  in 
)  Ith  sec- 
2v  amcnd- 

'errarum, 
irliamont, 
■  that  au- 
I'unswick. 
into  Par- 
It  all  por- 
ted King- 
I  women, 
nowledg- 
Colony, 
issible  in 
it   of  the 


lELL, 


EXTRA-TERRITORIAL  INCIDENTS 


or 


COLONIAL    LEGISLATION. 


The  Legislatures  of  New  Brunswick  and  Nova  Scotia  hav- 
iug  passed  Acts  authorizing  their  respective  Governors  to 
appoint  Commissioners  in  the  United  Kingdom  of  Great 
Britain,  and  in  the  United  States  of  America,  for  tlie  pur- 
pose of  taking  certain  proofs  and  acknowledgments  to  be 
used  in  evidence  within  those  Provinces  respectively,  the 
Duke  of  Newcastle,  acting  on  the  o{)iD.ion  of  the  Crown  offi- 
cers in  England,  that  such  legislation  Avas  in  excess  of  the 
powers  of  the  Provincial  Governments,  advised  the  withhold- 
ing of  the  Queen's  assent  from  those  acts  until  certain  sug- 
gested amendments  were  made  therein.*  On  this  opinion 
and  Tlis  Grace's  comn^ents  upon  the  sulyect,  the  following 
consitlerations  are  presented. 

These  Provinces,  with  local  legislatures  and  judicial  tribu- 
nals of  their  own,  arc  p'-osumed,  especially  under  tlie  Kespon- 
fiible  Government  systom,  to  have,  in  fact  do  have,  exclusive 
control  and  direction  of  their  own  private  interests,  property 
and  local  aflairs.     The  quo»tir>n  would  appear,  then,  to  turn 


*  Tho  Uoviil  assent  Iws  l»ec'n  likewise  withlioUl  from  an  \vt  of  tlic  New  Brmis- 
wick  Legi^latare  {^\H{j-l),  c.  31,  2-lth  Vie.,  pass^ed  iuanieudmeutof  tlicir  Aet  (1861), 

C  :iG.. 


10 


on  their  right,  under  any  circumstances,  to  the  exercise  of 
extra-territorial  jurisdiction  ;  and,  in  pursuing-  this  investiga- 
tion through  the  writings  of  various  commentators,  it  is 
thought  best,  at  the  risk  of  appearing  prolix,  to  use  their 
precise  language  ;  referring  by  notes  to  all  authorities  when 
so  quoted  or  otherwise  relied  on. 

Jurisdiction  is  of  two  kinds — one  of  strict  right,  the  other 
conventional. 

"  Considered  in  an  international  point  of  view,  jurisdiction, 
to  be  rightfully  exercised,  must  be  founded  either  on  the 
person  being  within  the  territory,  or  upon  the  thing  being 
within  the  territory." 

As  to  persons,  "  it  is  true  that  nations  generally  assert  a 
claim  to  regulate  the  rights,  and  duties,  and  obligations,  and 
acts  of  their  own  citizens,  wherever  they  may  be  domiciled. 
And,  bO  far  as  these  rights,  duties,  obligations  and  acts  after- 
wards come  under  the  cognizance  of  the  tribunals  of  the 
sovereign  powci'  of  their  own  countr}',  cither  for  enforcement, 
or  for  protection,  or  for  remedy,  there  may  be  no  just  ground 
to  exclude  this  claim."  Even  when  coming  under  the  con- 
sideration of  foreign  countries,  the  claim  "  may  be  admitted 
ex  comifafe  gentium.  But  it  may  also  bo  denied  ex  jnstilia 
genfium  whenever  it  is  deemed  injurious  to  the  interests  of 
such  foreign  nations,  or  subversive  of  their  own  policy  or 
institutions."* 

As  to  property,  "  it  is  true  that  property  within  a  country 
does  not  make  the  owner  generally  a  subject  of  the  sovereign 
where  it  is  locally  situate,  but  it  subjects  him  to  the  hitter's 
jurisdiction  secundiiw  (piid  et  aliquo  mo(h."f 

Again  :  "The  rulers  of  every  Empire  from  comity  admit 
that  the  laws  of  every  people  in  force  within  its  own  limits, 


*  StoH',  Conflict  of  T/nvs,  Sci-s.  .WO,  .540. 

EiiIIoTiois,  Pr.  Gen.  1,  2,  p.  2;j. 

Vattol,  B.  2,  I'll.  8,  yl  4. 
t  Story  ConH.  L.,  sec.  .5.>2.    Eulifiiois,  Oliscrv.  26,  pp.  G23  to  02.)  iiul. 


11 


?xcrcise  of 
investig-a- 

tors,  it  is 
use  their 

itios  when 


the  other 

•isdiction, 
3r  on  the 
iiig  being 

y  assert  a 
ions,  and 
lomiciled. 
icts  after- 
Is  of  the 
)rc'cniont, 
it  ground 
the  con- 
admitted 
r  jnslilia 
nrests  of 
policy  or 


country 
ovoroign 
;  latter's 


y  admit 
II  limits, 


\')  incl. 


ought  to  have  the  same  force  everywhere,  so  far  as  they  do 
not  prejuiJice  the  powers  or  rights  of  oilier  governments  or  of 
their  citizens,^ '^ 

From  which  "  it  appears  that  this  matter  is  to  be  determin- 
ed not  simply  by  the  civil  laws,  but  by  the  convenience  and 
tacit  consent  of  different  people  ;  for,  since  the  laws  of  one 
people  cannot  have  any  direct  force  among  another  people, 
so  nothing  could  he  more  inconvenient  in  the  commerce  and  gen- 
eral  intercourse  of  nations,  than  that  what  is  valid  by  the  laws  of 
one  place  should  become  without  effect  by  the  diversity  of  laws  of 
another;  and  that  this  is  the  true  reason  of  the  last  axiom,  no 
one  hitherto  seems  to  have  entertained  any  doubt."  f  On  this 
point  lluberus  and  Grotius  are  mainly  guided  by  the  practice 
of  nalions  ;  and  aim  to  avail  themselves  "  of  the  practice  of 
nations  as  a  solid  proof  of  the  law  of  nations. "J  The  same 
doctrines  on  this  point  are  approved  by  Bullenois,  and  find 
favor  with  English  and  American  jurists  ;  and  it  is  to  be  ob- 
served that  no  far  from  any  question  being  seriously  raised 
by  Continental  jurists,  it  seems  to  bo  conceded  that  the  laws 
of  one  country  ought  to  have  the  same  force  everywhere  as 
in  its  own  limits  ;  and  the  only  discussion  is  where  questions 
of  conflicting  interests  do  arise. §  Burge  and  Kent  may  also 
be  cited  on  this  point. || 

"  A  nation's  laws  do  not,  proprio  vigore,  operate  beyond 
the  torritory  of  their  State,  however  they  may  aspire  to  do 
so,"  &c,  &c. 

"  But  upon  laws  which  respect  only  the  private  interests 
of  the  private  man,  by  what  is  called  the  comity  of  nations 
(comitas  gentium,  or,  as  it  is  somotimes  named,  la  necessite 
du  hien  public  el  general  des  nations),  usually  is  conferred  an 


*  Hub.  do  Confl.  Lc^inn,  sec.  2,  p.  .138. 
t  Storv  CoiiH.  L.,  ser.  '11  ta  Wi  iiicl. 

I  II..,  We.  ;5(). 

if  Traitii  dc-s  Statiits,  o.  3,  ohs.  10. 

Story  roiiil.  L.,  sec.  31,  ;W  niiil  notes. 

II  Biir^a'S  ('(till,  oil  Colonial  aiul  Foioigu  Law,  vol.  1,  p.  5. 

II.  Kent's  Com.  4o7. 


12 


extra-territorial  operation,  provided  they  do  not  prejudice 
the  interests  of  foreign  states,  or  the  native  rights  of  their 
citizens. 

"  It  is,  however,  perfectly  optional  in  any  state  to  observe 
this  liberality,  and  usually,  in  determining  whether  it  will  do 
so  or  not,  it  is  influenced  by  the  consideration  that  a  simi- 
lar liberality  is  accorded  to  or  withholden  from  its  own 
subjects."* 

In  the  Statutes  of  the  United  States  and  those  of  the  sev- 
eral States  of  the  Union,  no  reference  is  made  to  the  laws 
of  other  coiuitries  in  appointing  Commissioners  for  foreign 
states  ;  and  no  recognition  or  covfirmalion  of  such  Commis- 
sioner by  the  foreign  state  of  his  residence  is  alluded  to  or 
required. 

Tiiere  is  no  requirement  that  the  Commissioner  appointed 
shall  he  one  empowered  by  the  laws  of  his  residence  to  adminis- 
ter oaths. 

The  generally  conceded  international  operation  of  bank- 
rupt laws  and  proceedings,  as  well  as  marriage  and  divorce 
laws  in  Europe  and  the  United  States,  furnish  analogous 
illustration  of  the  same  liberal  doctrine. 

Is  it  not  on  this  principle  that  the  authority  is  based  under 
■which  British  and  other  Consuls  exercise  some  of  their  offi- 
cial functions  ?  Many  of  their  acts  are  not  of  a  strictly  com- 
mercial character,  and  are  of  force  only  when  brought  within 
the  territorial  jurisdiction  of  the  law  which  declares  their  valid- 
ity. It  will  not  be  contended  that  an  exequatur  confers  any 
authority  on  the  consul  to  administer  oaths  or  take  acknow- 
ledgments of  deeds,  to  be  used  or  rogistti'od  elsewhere. f 

By  Massachusetts  laws  the  acknowledgment  (of  deeds) 
may  be  made  before  any  Commissioner  appointed  for  that  pur- 
p)ose  hij  the  Governor  of  this  Commonwealth,  tcithin  the  United 


f 


i 


*  Poison's  Law  of  Nntions,  23. 
t  Imp.  Act,  r.  Goo.  IV.,  c.  87. 

Imp.  Act,  18  and  19  Vic.  (1855),  c.  42. 


13 


% 


)pointed 
%dminis- 

of  bank- 
divorce 
lalogous 


(d  under 
their  offi- 
;tly  com- 
lit  within 
leirvalid- 
lers  any  | 
acknow-  f# 

■re.t 

•f  deeds) 
J  (hat  pur- 
\ic  United 


Slates,  or  in  anij  foreign  coun'rij ;  or  before  a  minister  or  consul 
of  the  United  States  in  any  foreig*n  country.* 

The  legislation  in  this  and  other  States  of  the  Uni  )n,  as 
well  as  that  of  the  United  States,  is  of  similar  chai'acter; 
but  Massachusetts  is  the  rather  instanced  because  its  legis- 
lation is  most  liberal  on  tliis  point, f  and  also  from  its  close 
proximity  to  and  commercial  relations  with  the  Colonies  for 
whose  benefit  the  ap[)lication  of  like  provisions  is  claimed. 

Here  the  right  is  assumed  on  the  part  of  a  State  to  appoint, 
Comniif<>iionerf<  in  foreign  countries,  ani  this  right  has  been 
acted  on  since  the  year  1783. 

Has  this  right  ever  been  questioned  by  either  the  United 
S'alm  Governvienf,  or  by  any  foreign  Government,  and,  if  nut, 
why  'i — supposing  always  that  the  assumption  of  such  right 
(relating,  it  is  true,  to  local  affairs,  but  taking  effect  ''per 
orhcni  terrarum^^)  were  beyond  the  power  of  tlie  individual 
State  assuming  it. 

The  iinlividaal  S'ates  have  no  diplomatit;  relations  with  the 
governments  of  foreign  countries,  and  consequenth'  it  can- 
not be  that  any  special  recognition  or  confirmation  of  coni- 
jnissioners  named  by  any  of  such  States  to  act  abroad  (in 
re!ati(m  to  the  internal  alVairs  of  the  appointing  State)  is 
retpiired  on  the  part  of  the  loreign  government  within  Avhose 
territories  such  commissioner  is  to  exercis(.>  his  functions. 

This  follows,  it  is  considered,  necessarily  from  the  law  of 
nations,  as  above  expounded,  on  the  two-fold  grounds  that, 

Ist.  The  exercise  )f  such  functions  "does  not  prejudice  the 
interests  of  furei/xn  States  or  the  ijative  ria'hts  of  their  citi- 


zens ; 


)> 


and 


2d.  These  laws  do  "  respect  only  the  private  interests  of 
the  private  man  :"— and  hence  iturisos  that  there  is  no  ques- 


*  Gen.  Stilts.  Mass.,  I'.  8r»,  see.  IS. 

Vi(k'  iilso  l{ijr.\'o  on  Cul.  and  l'\»r('iirn  L:nv,  Vol.  i!.,  p.  792. 

U.  S,  Laws,  1S17,  V.  'jS,  sees.  1,  2,  H. 
•f  Gin.  Stats.  M.i-:s.,  r.  VA\,  mh-,  IJS. 
1  Orccij.l.  Jvv.,  s(>c.  :y>). 


u 


tion  or  contest  as  to  right  or  nirisdiction  either  between  the 
separate  State  and  the  United  States,  or  between  either  of 
them  and  the  several  foreign  states  where  such  commission- 
ers act  and  reside. 

Is  not  the  relation,  in  fhis  renpeci,  between  the  individual 
State  and  the  United  States  identical  with  that  of  thesi;  Colo- 
nial Leg-islatures  and  the  Imperial  Government  of  (Jreat 
Britain? 

It  is  required  to  ameiid  the  Act  of  New  Brunswick  so  as 
to  conform  to  tliat  of  Lower  Canada,  which  aUows  the 
Governor  to  "  nominale  and  appoint  commimioners,'^  &c.  : 

"  Provided  thai  no  person  hut  an  atlornei/  or  sohdiur  ])rac- 
tiaing  in  one  of  the  Superior  Courtx  of  Great  Britain  or  Ire- 
land, and  qualified  hij  law  to  act  a.>-  commissioner  for  similar 
purposes  in  Great  Britain  and  Ireland,  shall  be  appointed.^^*^ 

Is  it  obligatort/  to  seh'ct  only  such  as  are  authorized  or 
qualified  by  law  of  the  State  or  foreign  country  where  they 
reside,  to  act  as  commissioner  for  similar  purposes  in  such 
country  ? 

The  Duke  of  N<>wciistle's  letter  states  the  objection  to  be 
this  :  "  That  although  the  Colonial  Logishiture  have  full 
powers  of  legislation,  in  ivgurd  to  New  Brunswick,  no  power 
at  all  has  been  conferred  upon  thenv  of"  regislarfng  tor  the 
United  Kingdom,  or  for  foreign  countries  ;  and  consctpiontly, 
that  win'le  they  are  competent  to  declare  Avhat  aflid.tvits  or 
other  docmnents  shall  he  receivable  in  evidence  in  New 
Brunswick,  they  are  n(*t  competenr  to  clothe  any  cununis- 
sioner  or  other  person  with  the  povv(n-  of  adn>inistering  oaths 
in  Great  Britain  and  the  United  States,  (without  any  refer- 
ence to  the  la^ws  of  thos(?  countries),  still  less  to  confer  on 
them  the  powers  ('exercisable  beyoml  the  limit?  of  New 
Brunswick)  crpiivahMit  to  those  which  ai«>  confcrrcfl  uii  cer- 
tain Judges  by  th(;  Tth  section  of  tlur  Imperial  (sic)  Act  of 


*  Lower  Canada,  Acts  of  I860,  23  Vic,  sec.  3-5. 


ilividaal 
so  Colo- 
f  (lioat 

;k  so  as 
ws    itie 
&c,  : 
)r  jyrac- 
or  Ire- 
similar 
i/rr/."* 
lizod   or 
(>ro  Ihoy 
in  such 

Im  to  be 

avc   iull 

0  ])()wer 

Inv  the 

liiontlj, 

.tvits  or 

"ii   Nl'W 

uniMiis- 

\.iX  oiiths 

liy  rcl'c-r- 

iiir«'r  on 

if  New 

on  cor- 

xlct  of 


15 


19th  Victoria,  "in  amendment  of  the  law."*  The  precod- 
h\y;  sentences  are  quoted  verbatim,  and  it  is  evident  that 
misapprehension  as  to  the  Act  referred  to,  (IDth  Vic,  "in 
amen(hneiit  of  the  hiw  ")  existed  in  the  mind  of  His  Grace — 
perhaps  of  others.  Examination  will  show  that  the  Act  in 
question  is  not  an  Imperial,  rut  a  Colonial  Act,  which  was 
passed  in  1856,  received  the  Koyal  assent,  and  has  been 
actiid  on  witliout  objection  to  Ihe  present  time. 

Not  oidy,  then,  does  the  reasoning-  upon  it  fail,  but  inves- 
tig"  ition  furnishes  an  additional  argument  in  favor  of  the  pre- 
sent claim. 

His  Grace  then  refers  to  the  Canadian  Act  of  1860,  23 
Victoria,  c.  51,  sec.  35,  as  "framed  with  a  full  appreciation 
of  the  limits  of  Colonial  and  Imperial  jurisdiction,  and  there- 
fore not  open  to  any  objection,"  and  adds,  "  You  will  ob- 
serve that  its  ellect  is  merely  to  authorize  the  reception  in 
Canada  of  affidavits  taken  in  England  by  persons  selected 
indeed  by  the  Governor,  but  authorized  by  English  (not  Can- 
adian) law  to  administer  oaths." 

AVheth(U"  this  restriction  ap[)lies  to  the  United  States,  and 
to  the  selection  of  those  only  who  arc  authorized  by  that 
government  to  administer  oaths,  is  not  clear,  but  the  infer- 
ence would  1)0  that  only  such  were  admissibl(\ 

Again,  in  a  letter  3d  September,  1861,  to  the  Lieut.  Gov- 
ernor of  Nova  Scotia,  of  similar  im|»ort,  His  Grace  says  : — 
"In  IVaminu'  Colonial  Acts,  it  cannot  be  too  canM'ullv  rcnuMn- 
bered,  that  those  Acts  have  no  etli^ct  beyond  the  limits  of  the 
Colony  in  which  they  are  passed,  and,  on  this  principle,  the 
Nova  Scotia  Legislature,  while  it  has  full  power  to  declare 
what  iiHldavits  or  other  docnmoits  shall  be  received  in  evi- 
di'iici!  1)y  the  Nova  S(!otia  Court,  is  not  competent  to  clolhe 
any  pci'son  with  the  authority  to  administer  oaths  in  other 
parts  of  Her   Majesty's  dominions — an   authority  which   in 


*  '111  •  l)iik(>  of  Nowcastlc's  letter  to  the  Lieut.  Governor  of  New  IJriin  wiek, 
lOtli  April,  m>L 


16 


each  place  must  be  coiifoiTcd  and  regulated  by  the  Leg-isla- 
ture  of  that  place,  or  by  Act  of  Parliament." 

Now  ill  creating'  such  connuissioiiers  to  act  in  foreig'n 
countries,  the  aulhurifij  inunt  reside  suniewJiere ;  either  in  the 
Imperial  Government  of  Great  Britain,  or  in  the  Colonial 
Government,  or  in  the  foreicjn  countrij.  It  cannot  be  in  the 
first  or  last  of  these  powers,  because  the  Colonial  Cibvcrn- 
ment  may  decline  to  select  the  nominee  of  the  others  ;  and 
the  authority  to  administer  tiie  oath  must  enuinate  from  some 
competent  power  ;  but  for  like  reasons  it  cannot,  in  the  case 
sui>posed,  originate  with,  reside  in,  or  be  derived  from,  the 
Imperial  or  any  foreign  government ;  because  the  Colonial 
Government  wiight  nut  place  confidence  in  the  individual  so 
authc»rized,  and,  without  such  concurrence,  the  other  powers 
can  give  no  extra-territorial  force  to  the  act  of  their  own 
nominee. 

The  case  (tf  the  Consul,  before  cited,  is  again  in  point,  and 
the  conclusion  would  seem  irresistible,  that  where  the  au- 
thority to  aeh'ct  a  functionary  in  regard  to  local  afiairs 
resides,  there  also  is  placed  the  right  of  clothing  such  func- 
tionary with  all  powers  needful  for  the  exercise  of  his  assign- 
ed duties  ;  provided  always  that  in  so  doing  no  powers  arc 
assumed  to  be  conferred,  such  as  actually  or  by  implication 
conflict  with  the  laws  and  rights  of  the  country  whore  the 
acts  in  question  are  authorized  to  be  done. 

The  property  to  be  affected  is  within  Colonial  Jurisdiction, 
and  every  act  done  in  regard  to  it,  ivhereeer  done,  has  power 
only  by  relation  to  the  locality  of  the  sid)ject  matter,  and  is 
of  no  effect  until  brought  within  the  territ(;rial  limits  of  such 
Colonial  Jurisdiction, 

Is  there  anything  in  the  act  of  the  Commissioner  inimical 
to  the  riglits  or  interests  of  the  foreign  State  of  his  residence, 
or  confiictiujLii'  with  its  laws,  when  he  tenders*  an  oath  relat- 


i 


*  Lord  Ch.  Justice  Wiilcis'  opinion.    Willcs'  R.,  545. 


n 


s 


\ng  to  private  intorosts  or  proceodinp^s  in  tho  course  of  jus- 
tice in  anuth(n-  comitrv,  and  records  tiio  fact  tliat  sucli  oatli 
was  taken  accordin;.';  to  a  [)rescril)('d  form  'f  The  \vliolo  i)ro- 
C(}eding'  is  as  voluntary  as  IIioui;!!  (he  ch'ixuient  had  sworn 
before  a  resident  Consul,  or  li(>for(.'  u  local  iMajristrato  of  the 


State  wh 


lorei<;'n  Mate  wnore 


t! 


ith 


do.    NoilhcrC 


no  o;itn  IS  made.  .Noitlicr  Uonniussioncr, 
nor  Consul,  nor  tho  local  iMaoislrate  can,  in  the  a])sence  of 
local  Statute  provisions,  compel  such  depoiient  to  take  his 
oath,  if  unwillini!;. 

It  is  cntirtdy  on  the  principle  of  international  Comity  when 
such  Statute  pi'ovisions  arc  mailc,  and,  without  these,  can 
tho  legal  penalties  for  perjury  he  enforced  within  the  juris- 
diction of  su(di  forci.Lcn  State,  wIkm-c  a  false  oath  is  taken 
either  before  a  Consul  of  anotlnM-  countrv  or  even  belbre  the 
local  JMa,i;'istr.ite  ?  '•' 

The  foreij:;!!  ])o\ver  caimot  clot  lie  (/«  ow;?.  oOicer  witli  au- 
thority to  act  in  resj^ard  to  property  situate  out  of  its  territo- 
rial limits,  any  more  than  the  ImpinMal  or  Coloin'al  Govern- 
ment of  Great  Britain  can  em])ower  any  one  within  the  ter- 
ritory of  the  foreig'ii  power  to  act  in  the  ail'airs  of  such  for- 
eij^n  power. 

Of  what  force,  then,  is  the  objceliou  tliat  the  Cijlonial 
nominee  must  be  one  who  deijves  authority  IVoni  the  Impe- 
rial or  the  Foreit:;n  Government  to  act  in  like  cases  within  and 
for  liU  oK'ii  g-overnment  ? 

Suppose  the  commissioner  selected  bo  a  rcsi'Ienl  in  (lie 
Colontj,  and  that  as  such  he  is  appointed  to  ^.o  ami  reside  in 
the  forei!Lj;n  country,  and  there  act  as  proj)ose(l,  (without  any 
confirmation  on  the  part  of  tlM?  forei^'u  C(nintry),  in  Colonial 
matters  of  a  purely  private  b)cal  nature,  not  conflicting  with 
the  rights,  interests  or  laws  of  such  foreign  country  or  its 


*  1  Iliiwk.  P.  C,  c.  r.O,  soc.  1  to  4,  incl. 

4  IJliKk.  Com.,  i;}7. 

II.  iins^eii  (jii  c,  rm. 

5  iind  6  Will.  IV.,  c.  (52,  sec.  13. 
1  IJinn.  11.,  o43. 


It 


inliiiltit.'iTits ;  can  tlici'o  l)e  -a  douht  of  tlio  rijj^ht  on  tho  part 
of  tlio  Coloni'il  (jovonirnont  to  make  such  appoiiiltnont  i* 
And  if  tliiw   ii;;-lit  cannot  lio   quostioncd,  wlioro   m  tho  dif- 

b'  actually 


feror 


th( 


jhM^ti 


d  anth 


rh 


zing"  one 
resident  at)roa(l  r  SJionid  tins  rigut  be  seriously  controvert- 
ed, tho  same  diHicnity  arises  where  iho  foreif/n  chosen  func- 
tionary is  seh'cted  also  by  the  Cok)nial  Government  as  rc- 
quii'ed  by  tho  Duke  of  Xewcastle's  directions. 

]s  not,  therefore,  tlie  ease  under  consideration  identical  in 
princi[)le  with  that  where  A  gives  B  a  power  of  attorney, 
and  sends  him  abroad  to  act  in  the  constituent's  private 
business  aflfairs  ?  li,  then,  has  full  \)o\vcrH,  by  vir/iie  of  A' s 
appoinlmenl,  although  he  goes  abroad  and  acts  under  the 
territorial  jurisdicti(»n  of  another  country — remaining  there 
and  continuing  so  to  act ;  provided  he  does  not  attempt, 
in  exercising  tliose  powers,  to  infringe  the  laws  of  his  for- 
eign residence,  or  to  use  such  powers  in  regard  to  any  other 
business  than  that  of  A. 

The  colonial  legislalion  on  Postal  aflairs,  among  others 
wliich  might  be  cited,  furnishes  an  instance  of  the  exercise 
of  extra-territorial  jurisdiction.* 

The  higher  English  and  Colonial  Courts,  by  virtue  of  pow- 
ers conferred  on  them  by  their  respective  Legislatures,  have 
long  exercised  authority  extra-territorially,  by  issuing  C(,»m- 
missions  to  take  evidence  in  foreign  countries. |  Tliesc;  Cotn- 
missions  profess  to  confer  all  adecpiate  powers  on  the  pfirty 
deputed  to  execute  theni,  at  least  to  the  extent  of  adminis- 


*  Rov.  .Stnts.  N.  S.  (2(1  ,-(ri(>>),  c.  23,  h'c.  27. 

Rev.  Stars.  N.  15.,  c.  10,  mt.  i»,  M,  ^c. 

T'DiisoI.  Stats.  Cauaila  ( I8.3i)),  c.  6\,  .sec.  14,  34. 
t  1  Stirk.  F,v.,  :V2:]. 

2Ti.l(l'srr.,  810,811. 

1  1!.  iv  1'.,  210. 

6  Nov.  &  M.,  .-nS. 

Iiiip.  Acts,  i;{  fito.  III.,  0. 63. 

1  Will.  IV.,  c.  22,  SCO.  4. 
"        "      la  and  20  Vic,  c.  1 13. 

Acts  of  N.  13.,  5  Wm.  IV.,  c.  14,  &c.  &c. 


19 


toritift'  llio  nccossary  out1»s  uiid  iippoiidiiin^  all  necdl'iil  cci  tili- 
catos,  which  arc  aihniltcd  to  Cull  faith  and  ellii-acy  when  vc- 
tuniod  to  tho  Iribunal  whciu-o  they  cmaiiatiMl/''  In  thcso 
cases  tio  limitation  is  eiijoiiu.'d  whcn-hy  tho  ConnnissioncrH 
selected  should  he  stich  as  are  alreaily  aiith(n'i/(>d  in  like; 
cases  by  and  on  helialf  til'  Hie  f;'()V(>iiinient  Avhere  they 
reside;  and  in  view  of  the  facts  iK.'fore  advertcMl  lo,  lliat 
these  acts  relate  strictly  td  private  interests,  do  iinf  cim- 
flict  with  any  lorei|j,-n  laws,  ar((  ministerial  ordy,  and  are 
of  no  cjTect  until  the  evideiu-e  they  ar<!  inteinled  to  aiilheuli- 
cato  is  l)rou<i,'hi  within  the  jiirisdidinn  uf  ijie  coiistiliient  tri- 
bunal, it  may  be  s(>riou.sly  (luestinned  wh(;ther  any  dilTerence 
in  prin(Mple  really  (exists  Ironi  thatof  Commissioners  in  the 
case  proposed.  In  this,  as  in  tho  former  case,  the  ('om- 
niissioner's  ollico  can  be  exercised  only  in  relation  to  inter- 
ests of  a  ])rivate,  local  cdiaracter. 

It  is  also  worthy  of  considiMidion,  that  in  conf(>rrin<2,'   such 
powers,  due  caution  should   be   oliserviul  in  the  st^Iec^tion  of 
those    only  Avho  possess    the  (;onlidence   of  th(;  constituent, 
both  for  their  ability  and  inte<^rity. 

But  what  becomes  (d'  this  security  if  the  constituent  be 
compelled  to  sel(!ct  from  those  appointed  by  powers  or  inlin- 
ences  to  Avhi<;h  he  is  an  entire  strauj^'er,  whose  merits  he  is 
igriorant  of,  and  Avhose  operations  he  cannot  conti'ol  !  It  is 
tru(^  the  natural  inference  would  b(;  that  those  selected  by 
a  forei<;'n  country  to  act  in  its  own  liehalf  in  like  cases,  vouhl 
be  worthy  of  trust ;  but  as  it  is  the  principle  which  is  under 
consideration,  it  would  not  be  dilliiMdt  to  imag'ine  extreme 
cases  where  most  unlit  appointments  mi,t;ht  l)e  matle  in  other 
countries  under  the  pressure  of  corru})t  inlluonces  or  party 
claims;   and  yet,   havin;^  no   voice   in  the  original  ciioice,  a 


*  IDcnv!.  II. 'JOl. 
;'}    "       "    ISl. 
1  Croinp.  ami  J.,  olO. 
3  iJiiifi.  N.  v.,  <'.:. 
11).  "    780. 


20 


colony  tnig'ht  bo  cowjwlh'il  to  "  scli'ct  "  such  ofliciiils  to  act 
i\\  its  own  lioliiili';  while,  shuiiM  Kurh  an  unlit  Kt'h'ction  bo 
orii^'inally  niado  by  the  Cobjuy  in  apixtiiitinj;'  its  own  Coniniia- 
sioudr,  the  remedy  would  always  remain  with  ilscll". 

Til'.!  precMjdin^  observations  ar(!  maiidy  directed  to  the 
Constitutional  question  on  which  the  objections  to  these  ap- 
pointments are  expressed,  but  (»ther  coiisid(M'ationa  on  the 
score  of  convenience  are  not  wanting;',  som<?  of  wliicli  have 
been  forcibly  urgx'd  in  th(>  oflicial  correspondence  on  this  sub- 
ject l)etween  the  Colonial  ami  Imperial  C!(jvernments.*  Of 
this  class,  one  claims  special  notice,  and  should  not  bo  over- 
lot)ked. 

The  Statute  laws  of  the  dilVeront  Colonies  vary  materially 
from  one  another  ;  they  vary  also  from  those  of  the  parent 
country,  as  tiiey  do  likewise  from  the  laws  oi  forei<;'n  states 
where  the  services  of  a  commissioner  may  Ix;  needed.  In 
addition,  all  of  these  laws  are  modilicnl  or  entirely  changed 
from  time  to  time  ;  and  it  cannot  be  expected  but  that  con- 
stant mistakes  and  informalities  avIU  thus  arise,  in  executing 
the  duties  of  such  ati  ollice,  if  oidy  those  conversant  with  one 
set  of  laws  are  necessarily  to  be  selected  to  fill  it. 

The  experience  of  almost  every  professional  man  will  rea- 
dily suggest  illustrations  of  this.  AVhilo  un  the  other  hand, 
in  authori/,ing  thrlr  own  commissioner  for  such  purpose, 
each  Colony  would  have  special  regard  to  his  acquaintance 
■with  their  local  laws,  and  would  keep  him  advised,  from  time 
to  time,  of  such  changes  as  relatcil  to  the  exercise  of  his 
duties. 

In  the  preceding  pages  a  parallel  has  1)een  drawn  between 
the  relative  position  of  legislative  powers  possessed  by  the 
several  States  of  the  United  States  with  those  of  the  Xational 
Government,  ami  a  corresponding  position  which,  it  is 
claimed,  is  occupied  l)y  those  Colonies  where  the  system  of 


vfy 


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it 


*  Iloport  of  the  Attorney  Generiil  of  N(  w  nninswiek,  inelofjed  in  despatch  of 
Lieut.  Govcraor  of  N.  L.  tu  tlic  Duke  of  Newcastle,  18th  Feb.,  18G1. 


lil 


ma- 
in <l, 
.so, 

IICG 

iiuo 
his 

oon 
the 
mal 
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of 

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KcHpoiiHiMc  Oovornniont  prtniiils,  in  rclutioii  to  the  Iinpcriai 
(Jnv  (M'liiiiciit  of  (jicat  Hiitaiii. 

Vicwx'l  hist<»iically  Ihrouf^'li  tlio  [)rooT(>ssivo  sl('i)s  wliicli 
luivo  It'll  to  that  result,  tlu;  Hclf-j^'ovcniin;.';  powition  of  tlio 
K('V(.>ral  Stales  and  of  tlio  Xortli  Aiiici-icMii  CulonicH,  in  rela- 
tion to  tlieir  respoctivo  National  (loveniments,  lias  been  at- 
tained by  un  entirely  dilVerent  (.'ourse  ;  bnt  it  is  with  tlio 
result  as  it  presents  itsidf, — the  conceded  fact  of  sucli  lord 
,sell-;j^overnineiit, — that  wo  are  to  deid  :  and  the  anido^y,  it, 
is  claimed,  ?.s  just  and  ai)plicable  in  the  eonncction  in  which 
it  has  been  ur<^'ed. 

Ui)ou  tho  wisdom  of  that  Hystcm  known  as  '•' E(.'sponsiblo 
Government,''  wiien  con(;ed(,'d  to  the  British  Xorlh  Amijrioaii 
Colonies,  wise  and  able  men  entertained  op|><>site  opinions. 

Unt  that  system  has  been  lor  a  considerable  period  estab- 
lished, and  instances  of  no  distant  date  will  be  in  the  mindti 
of  Colonists  where  tho  Home  liovernmont  has  hold  them  to 
tho  oxtremo  working  of  that  aystt'm,  althougii  requested  by 
lar;^'e  r(;presentalivo  inlluence  to  interfere. 

Tho  question,  then,  as  to  extra-territorial  [towers  assumed 
l)y  Colonial  Leg'islatures,  has  presonte(l  itself  undci  these 
circumstances,  and  must  bo  viewed  in  the  lij^'ht  of  existing 
facts. 

Tho  several  States  are  supremo  in  their  legislative  powers 
ttf^  lo  lural  nj/'airx,  -dud  the  I'liited  States  (Government  is  su- 
premo ill  all  matters  of  a  national  character  involving  tho 
mutual  relatio:;s  and  interests  of  tho  States  in  their  collec- 
tive capacity  with  those  of  foreign  countries.  In  like  man- 
ner the  hnperial  Govermnont  of  Great  Britain,  in  conceding 
their  ])rcsent  system  of  government  to  her  North  American 
Coloiuos,  declares  in  olfect,  "In  all  matters  of  a  local,  pri- 
vate character  you  may  legislate  for  and  govern  yourselves 
according  to  tho  well-understood  wishes  of  your  peoide,  sup- 
porting tho  expense  of  such  government,  providing  f  )r  it  by 
local  taxation,  and  remaining  loyal  to  tho  13ritish   Crown  ; 


22 


but  a  certain  supervision  over  your  proceedings  must  ho  ex- 
ercised by  the  Imperial  Government,  in  order  that  you  may 
not  assume  powers  which  conflict  with  its  constitutional 
rig'hts  or  with  those  offoreifr-n  countries  ;  with  ^hem,  as  with 
us,  you  may  have  free  conunorcial  intercourse  ;  but,  having 
no  rehitions  of  a  diplomatic  character,  the  Imperial  Govern- 
ment is  answerable  to  foreign  powers  for  you.  Your  legis- 
lation, therefore,  must  bo  subject  frt)m  time  to  time  to  appro- 
val from  the  Homo  Govenmient." 

That  approval  follows  as  of  course,  it  is  submitted,  In  all 
caset  where,  as  in  the  present  instance,  the  subjects  legislat- 
ed upon  are  of  a  strictly  local  chai'acter,  and  where  the  laws 
vi'  the  Imperial  or  foreign  govern ^^lents  arc  not,  as  a  con- 
sequence of  such  local  legislation,  infringed  or  disregarded. 

Wiiile,  therefore,  in  framing  Colonial  Acts,  due  regard 
should  be  had  to  the  limits  of  Colonial  jurisdiction,  it  is 
equally  important  that,  in  reference  to  the  administration  of 
local  afl'airs  and  interests,  with  all  powers  incident  thereto, 
Colonial  Legislation  should  be  left  to  its  fullest  operation. 

We  have  seen  that  between  friendly  foreign  States  the 
extra-territorial  administration  of  their  respective  local  laws 
is  permitted  on  a  princii)le  of  International  Comity;  and  that 
an  analoo;ous  svstem  of  legislation  and  local  self-iioverimicnt 
prevails  in  Great  Britain  and  lier  North  American  Colonies, 

It  will  1)0  conceded,  also,  that  the  Acts  in  question  relate 
strictly  to  the  private  local  interests  of  the  respective 
Colonies. 

With  due  deference,  therefore,  to  the  eminent  authorities 
who  have  ollicially  i)assed  upon  them,  the  conclusion  appears 
inevitable,  tliat  iu  authorizing  the  appointment  of  Commis- 
sioners by  tlie  Acts  under  consideration,  the  Colonial  Legis- 
latures have  not  exceeded  tlie  just  limits  of  their  Constitu- 
tional Powers. 


T 


^ 


